Judicial measure a conservative stealth scheme.

Byline: Russell Sadler For The Register-Guard

Ballot Measure 40 requires judges of the Oregon Supreme Court and Court of Appeals to be elected from geographic judicial districts like legislators, instead of statewide like such officeholders as the governor, secretary of state and state treasurer.

Oregon voters rejected a similar initiative in 2000. The same special interests who pushed the idea then are back again, funded by national conservative organizations determined to pack the state judicial system with the same sort of `conservative' activist judges they have been packing the federal courts with since the 1980s.

To understand the problem Measure 40 creates, we need a little background.

Trial courts try the facts - did someone actually do what they are accused of doing? What is the evidence? Appellate courts try the law. Did the judge interpret the law correctly? Did the trial follow accepted procedure?

Trial courts do business in a nearby county seat. Oregon's 36 counties are organized into 27 judicial districts. Trial judges are elected locally to serve the people of that district and live in the district where their court is located.

Decisions of these trial judges are appealed to the Court of Appeals and the Oregon Supreme Court. They serve all Oregonians. The judges are elected as statewide officeholders. They do their daily business at the seat of government - Salem. So appellate judges typically live either in Salem or within commuting distance - Portland and its suburbs or Eugene. Measure 40 forces appellate judges to live in their districts in Eastern, Southern and coastal Oregon. Yet the judges would have to really live in Salem where they do their daily work.

At statehood in 1859, Oregon's Supreme Court judges were chosen from districts. Between 1840 and 1860, about 54,000 people migrated to Oregon by ship or on the Oregon Trail. Most of them settled in the Willamette Valley. With such a sparse population, there was no need for full-time appellate judges. Oregon's Supreme Court judges `rode circuit' for much of the year, conducting trials in various county seats. A couple of months a year, the Supreme Court assembled in Salem to hear appeals.

As the state grew, the Legislature created trial courts with judges elected to represent the districts where they lived. Supreme Court judges became statewide elected officials. The Legislature did not create an intermediate Court of Appeals to lighten the Supreme Court's workload until the 1970s.

There is another reason that appellate judges tend to come from Salem, Portland or Eugene. Appellate law is a specialty. The trial lawyers conservatives love to hate rarely conduct their own appeals. Trial lawyers hire specialists to conduct their appeals. There are two kinds of appellate lawyers. Some are sole practitioners who specialize in appellate work. They tend to have their offices in Salem. The other appellate lawyers are in big law firms that can afford the luxury of specialists. The only cities in Oregon large enough to support law firms with specialists in appellate law are Portland and Eugene. Appellate judges typically come from this pool of appellate lawyers.

So why are supporters of Measure 40 so eager to replace a system that elects trial judges from districts where they conduct their trials and elects appellate judges statewide to encourage the law to speak with one voice?

Privately, they will tell you the present system makes Oregon appellate courts too `liberal.' That is ideological nonsense. The best to be said for Oregon's appellate courts is that they are competent and orthodox. And competent orthodoxy is likely to remain the standard of Oregon's judiciary as long as the present system for choosing judges remains intact. Measure 40 is a stealth plan by conservative ideologues to smuggle members of the radically conservative Federalist Society - such as Supreme Court Justice Antonin Scalia - into Oregon's orthodox judiciary.

The national conservative ideologues bankrolling Measure 40 hope that by choosing Oregon's appellate court judges by districts smaller than the state as a whole, it will be easier to elect conservative - read revisionist Federalist Society - judges.

Oregon voters rejected this silly stealth scheme in 2000 and they ought to do it again this November.

Political commentator Russell Sadler lives in Eugene.